State v. Boyer

• Decision Date: 08 December 1987
• Citation: 221 N.J.Super. 387,534 A.2d 744
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Forrest L. BOYER, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 387

221 N.J.Super. 387

534 A.2d 744

STATE of New Jersey, Plaintiff-Respondent, v. Forrest L. BOYER, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Oct. 26, 1987.

Decided Dec. 8, 1987.

Alfred A. Slocum, Public Defender, for defendant-appellant (Alan I. Smith, Designated Counsel, Jersey City, of counsel and on the brief)

W. Cary Edwards, Atty. Gen., for plaintiff-respondent (Edward R. Bonanno, Deputy Atty. Gen., of counsel, and on the brief).

Before Judges PETRELLA, DREIER and BAIME.

The opinion of the court was delivered by

DREIER, J.A.D.

Defendant appeals from his conviction of felony murder, N.J.S.A. 2C:11-3a(3); armed robbery, N.J.S.A. 2C:15-1; attempted At approximately 12:30 a.m. on August 3, 1984, Dawn Andre and the homicide victim, Clarence Maxwell, were sitting on Dawn's father's car which was parked in front of Dawn's house. Jihad Muhammed (a/k/a Dale Mayo) and defendant Forrest Boyer asked Dawn's sister, Debbie, who was sitting on some steps across the street, if she wanted to buy some drugs. When she declined, Muhammed crossed the street and asked the victim and Dawn if they wanted to purchase some. They declined, but Dawn went into her house to ask her mother if she wanted amphetamines which she sometimes used as diet pills. When Dawn came back outside to tell Muhammed that her mother did not want to purchase any pills, Dawn overheard Muhammed say to Clarence "I'm going to remember you." Muhammed then called to defendant, who was still talking about drugs with Debbie, to come over. Muhammed and defendant talked about Dawn for a few minutes, and then they left.

distribution of controlled dangerous substances, N.J.S.A. 24:21-19a and 2C:5-1; terroristic threats, N.J.S.A. 2C:12-3b; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a and unlawful possession of a handgun, N.J.S.A. 2C:39-5b. He was sentenced to a term of life with a 30-year parole ineligibility for the felony murder, to a consecutive 10-year term with a four-year period of parole ineligibility for the possession of the weapon for an unlawful purpose, and to concurrent five-year terms for each of the offenses of attempted distribution, terroristic threats and unlawful possession of a handgun. The armed robbery conviction was merged into the felony murder. Defendant's total sentence, therefore, was life plus 10 years with a 34-year period of parole ineligibility.

Approximately twenty minutes later, Muhammed and defendant returned, Muhammed armed with a pistol and a shotgun. Muhammed pointed the pistol at Dawn and the victim and told them "don't move or I'll blow your head off." Muhammed began to argue with Clarence about buying drugs. Dawn tried to run into her house to get her father, but Muhammed fired a Defendant grabbed Dawn's pocketbook which was on the roof of Dawn's father's car and started emptying the purse out on Clarence's car which was parked right behind Dawn's father's car. Although Dawn testified that nothing was taken from her purse, defendant confessed to the police that he "took the reefer out of the pocketbook."

shot at the ground by her feet. Muhammed then handed the pistol to defendant who put it in his waistband.

As defendant was searching through Dawn's purse, Thomas Vincent, the boyfriend of Dawn's sister, opened the front door of the Andre house. Muhammed threatened to kill Thomas, so Thomas went back into the house and woke up the Andre family. Then, Muhammed shot Clarence with the shotgun. Ronald Andre, Dawn's father, came outside to see what all the noise was about. Muhammed yelled to Mr. Andre that he had better go back into the house or else he would shoot him. Then, defendant turned and said, "I'll shoot this one myself." Mr. Andre went back into his house, and Muhammed and defendant walked away.

Defendant voluntarily turned himself in to the police on August 9, 1984. Clarence Maxwell died on August 29, 1984 from complications resulting from the gunshot wound.

Defendant's jury selection was initially completed on May 7, 1985, and the trial began the same day. On May 8, 1985, the court denied defendant's motion for a mistrial based on the court's decision to reopen the jury selection process to replace a juror dismissed for cause after opening statements.

Defendant raised the following points on appeal.

POINT I

The court abused its discretion in the procedure used in selecting the jury.

(A)

As the jury was impanelled and sworn and as opening statements were completed it was improper to reopen the jury selection process.

(B)

Defendant's conviction should be reversed as the jury selection was contrary to double jeopardy principles as delineated by New Jersey Courts.

POINT II

The court erred in admitting portions of defendant's statement in evidence.

POINT III

The court's charge to the jury was defective (not raised below).

(A)

The court committed reversible error by not charging the jury on manslaughter.

(B)

The court's charge on aiding and abetting prejudiced defendant.

POINT IV

The sentence imposed is manifestly excessive and not supported by the record below.

I

During the voir dire on May 7, 1985, the potential jurors were not informed of defendant's address. After jury selection, the attorneys made their opening statements and court was adjourned for the night. On the next morning, the prosecutor informed the court that in reviewing his notes, he discovered that juror number 15 lived at 1116 Princess Avenue in Camden and that defendant lived at 1156 Princess Avenue.

The judge granted the prosecutor's request to tell the jury defendant's address and to ask all of the jurors if any of them knew the address or members of the family. Juror 15 stated that although he may have known members of defendant's family, his ability to be fair and impartial would not be affected. Granting a further request by the prosecution, the judge asked juror 15 if he would be able to be fair knowing that regardless of the outcome of the trial, he could be confronted by defendant's family. When juror 15 indicated that if he were to be intimidated, it might affect his ability to be fair, the court removed the juror for cause. Defendant asked for a mistrial because juror 15 was the only black juror on the panel. ¹ The judge denied defendant's motion, but instead of proceeding with 14 jurors, the judge reopened the jury selection process to replace juror 15, inter alia because the jury was all-white, and because he wanted 15 jurors in this protracted case. After the new juror was selected, the attorneys were given the option of reopening or having their opening statements read to the new juror. At their request, the court reporter read the opening statements to the new juror.

Defendant contends that because the jury was sworn and opening statements were completed, the court improperly reopened the jury selection process to replace the excused juror. Defendant also argues that because juror 15 was replaced with a new juror, defendant was twice placed in jeopardy. ²

Defendant does not contest the fact that before any evidence is presented the judge has discretionary authority to reopen the examination of a juror who has already been sworn and to excuse the juror for cause. R. 1:8-3(b); State v. LaPierre, 39 N.J. 156, 173, 188 A.2d 10, cert. den. 374 U.S. 852, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963). Defendant argues, however, that because the attorneys already had given their opening statements, the judge disregarded R. 1:8-2(d) which provides in pertinent part that "[i]f a juror is excused after he has been sworn but before any opening statement is begun, another juror may be impanelled and sworn to take his place." (emphasis supplied).

Although the double jeopardy clauses in the United States Constitution and the New Jersey Constitution vary, the distinction has been held to be unimportant, and the New Jersey Supreme Court has held that the clauses are coextensive in application. State v. Rechtschaffer, 70 N.J. 395, 404, 360 A.2d 362 (1976); State v. Laganella, 144 N.J.Super. 268, 286, 365 A.2d 224 (App.Div.), app. dism. 74 N.J. 256, 377 A.2d 652 (1976). Jeopardy attaches in a jury trial after the jury is impanelled and sworn. Crist v. Bretz, 437 U.S. 28, 37-38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978); State v. Lynch, 79 N.J. 327, 341, 399 A.2d 629 (1979). But, before the double jeopardy clause will bar any further proceedings, there must be a second proceeding. "Unless there is a new trial, there cannot be a 'second' jeopardy." United States ex rel. Young v. Lane, 768 F.2d 834, 838 (7th Cir.), cert. den. 474 U.S. 951, 106 S.Ct. 317, 88 L.Ed.2d 300 (1985). The issue here, therefore, is whether the proceeding before the initial 15 jurors and the proceeding before the jury with the replaced juror legally constituted separate proceedings.

The statutory prohibition against double jeopardy is embodied in N.J.S.A. 2C:1-9d.

N.J.S.A. 2C:1-9; When Prosecution Barred by Former Prosecution for the Same Offense. A prosecution of a defendant for a violation of the same provision of the statutes based upon the same facts as a former prosecution is barred by such former prosecution under the following circumstances:

* * *

* * *

d. The former prosecution was improperly terminated. Except as provided in this subsection, there is an improper termination of a prosecution if the termination is for reasons not amounting to an acquittal, and it takes place after the jury was impaneled and sworn or, in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts. Termination under any of the following circumstances is not improper:

(1) The defendant consents to the termination or waives, by motion to dismiss or otherwise, his right to object to the termination.

(2) The trial court finds that the termination is necessary because of the failure of the jury to agree upon a verdict after a reasonable time...